45 F. 897 -

45 F1d 897

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Case Text

MOTT .,. FROST.

897

sonably certain that an injunction causing such. public inconvenience would be of no benefit to the parties obtaining it" There was read on the hearing affidavits of Messrs. Thos. L. Airey, Isidore Newman, and otbers, capitalists and stockholders in the complainant company, to the general purport that the interest in the patent, as set forth in the bill, is the sole remaining asset of the company; that it is valuable, if it can be protected; and that, if the complainant was assured of protection, and could receive the revenues to which it is entitled under the said patent, and could be assured of protection therein, it would place the complainant company in good credit and active operationas a dividend-payinK corporation; and that it would enable it to re-establish its lighting plant, enter again on the business of electric lighting, make good the investments of its stockholders, discharge its indebtedness, and afford the public the benefit which arises from a fair and open competition. In granting injunctions prior to the on the merits the court deals only with existing facts, and the extf'nt of the relief proper to grant is the protection of the complainant from irreparable injury pending the litigation. We are clear that the injunction pendente lite should be denied, and it is so ordered.

MOTT 11. FROST

et al.

(DlBtrf.ct Oourt, D. South. CaroUna. April 22, 1891.)

L

ADMIRALTY-LmEL FOR FREIGHT-TENDER-PLEADING.

a

In libel for the balance of freigM due under a charter-party libelant need not allege .a tender made by respondents, since the tender is a matter of defense to be let up by respondents. In libel for demurrage libelant need not allege of which party the charter-party or bill of lading makes it the duty to discharge the vessel, since the matter properly comes up in the evidence.

SAME-LIBEL :rOR DEMURRAGB-PLEADING.

In Admiralty. Libel in pereanam.· Libel for the balance of freight unpaid, and for demurrage, under the terms of a charter-party· It states the shipment of cargo-fish scrapat Nantuc, Conn., on voyage to Charleston, the arrival at the port, and the due delivery ofcargo to respondents at their wharf, and its acceptance by them, the payment of a part of the freight money due by respondents, and that a balance of $289.08 has not been paid. It also alleges that the charter-party provided for quick dispatch in loading and discharging the cargo; that lay-days should commence when the master should report himself ready to receive or discharge the cargo, and that for each day's detention by default of the charterer or his agent $60 per day should be paid by him; that the ship was reported at the wharf of respondent at 7 A. M. on 9th March, 1891, ready to discharge her cargo; that eight days was the usual time for discharging her, but that by v,45F.no.12-57

898

FEDERAL REPORTER , .vol.

45.

default ofrespondente the cargo was not discharged untill :30 P. M. on2lst. By reason thereoflibelant claims demurrage for 3f days at $60 per day. Respondents, after the libel was filed, expressed willingness to pay the balance of the freight, and tendered it. On refusal of tender they deposited the amount in court, and filed exceptions. Hugel'Sinkler, for libelant. Prank R. Prost, for respondents.
SIMONTON, The case comes up on exceptions to the libel: First, because it fails to state that a tender had been made by respondents; second. because the libel, in its eighth article, states "that the usual time for discharge of said cargo with quick dispatch is eight days, but that by reason of the default of the respondents the said cargo was not discharged untill :30 P. M. on 21st day of March, and that byreason thereof, and of the unjust detention of said schooner by said respondents, the libelantc1aims 'demurrage.'" The object of all the pleadings in admiralty is the clear exposition of the case of the pleader. He must avoid obscurity, !lnd must make his statements so plain that the other side can understand just what he claims. As there is no such device in admiralty as was adopted in common-law pleading, which enabled the parties to strip away all other statements, and come to a single issue, such plain and distinct statement of facts is absolutely required. A good illustration of this is the pleading in cases of salvage and collision. All the material facts must be clearly. statedj,everything done must be set forth. The question turns upon the conduct of the parties, and everything causing or contributing totJ:1e result be known by the court. When the pleader does this, he has done all that is required of him. He states his own case, and the facts peculi!l:rly within his own knowledge.. He is not required to state the case of his adversary, nor to anticipate his reply. Now, a tender is Ii. part of the defense, and mllst be made out by the respondents. It must be so made out as to comply with all the legal requirements of a tendei". If such tellder had been made or attempted to have been made during the progress of the controversy resulting in the suit, the respondents must show how and when they made it. So this exception cannot be sustained. With regard to the second exception, the respondents say 'that this eighth article does not set forth the real faots; that the charter-party or bill of lading provides for the discharge of the vessel by libelantjand that this article puts on respondents blame for delay in the discharge. Matters of evidence should not go into pleading. Logically and naturally they come up when the pleadings are ended. Were we to entertain this exception, we would' necessarily examine into a portion of the evidence, and pass upon a material part of the case before the case is ripe. We. may find that under the charter-party or bill of lading libelant was bound to discharge. Butperliaps the libelant wc;mld confess, and seek to .avoid this by other facts. We would then be called on to examine these, and possibly others, rebutting them, and so pile up issues in advance. The eighth article makes the case for .libelant. In their answer and in the evidence respondents can deny the al-

legations and deductions of this article; may show, if they can, that the duty of the libelant was to discharge the vessel, and that to his failure in the performance of this duty was due the delay. The questions are: Was the vessel detained? WBatdetained her? If the discharge detained her, whose fault was it? If the delay was due to the slow discharge of the vessel, was that caused by the course of libelant or by that of respondents? If it was the duty of the former to discharge and of the latter to receive and remove cargo, did the former discharge with all proper disdispatch, and did the latter receive and remove with sufficient speed? All these and other questions bearing on this article can be met and decided upon it and the answer to it and the evidence to be offered. This exception also is overruled.

SMITH 'I.!. THE MATTIE MAy.

(Df.8Wict Oo'l.lirt, D. South OaroLina.
AnMIRllTy-LrnBL IN

BIlRVICBll.

April 22, 1891.)

'!'helleryiC(lS of a stevedore in loading a vessel are maritime in their nature, for whioh, when 'rendered In' a foreign port, a libelinrem will lie. Following The au" bert Knapp, 87 Fed. Rep. 209, ' ' ,

In Admiralty. Exception to the jurisdiction. No.,thro.p Memmingeri fodibelant., , J. N., Nathainasnd Huger Sinkler, for respondent.
SIMONTON, J. The libel is in rem for sum ;due to the stevedore who loaded the vessel. Claimant excepts to the jurisdiotion. The services were performed nponthe vessel, afloat in Georgetown harbor, and were maritime in thei.r character. This court follows The Canada,7 Fed. Rep. 119; The Senator, 21 Fed. Rep. 191; The Gilbert Knap'p, 37 Fed. Rep. overruled. 209.